DISTRICT COURT, CLYDE.

Dunstan Times, Issue 381, 6 August 1869, Page 3

DISTRICT COURT, CLYDE.

Thursday, 29th July. (Before Wilson Grey, Esq.) IMPORTANT DECISION.

Connellan, appellant, v. Corporation of Cromwell.—Judge Grey gave his reserved decision in this case. He entered at some length into the facts of the case as follows: —The appellants (defendants below) were owners of a water-race of five sluice heads of water, heading from the Lowburn, and having its termination at Cromwell. The right originated in 1863, with three sluice heads, and had, in the year 1865, been increased to five heads, either by amalgamation with another right or by an increase given in a new application. The earlier certificates and licenses were lost, and no satisfactory record of them remained in

the Warden’s office. One branch of the race ran through Cromwell, and was called the town race. • From this the people of Cromwell had been in The habit of deriving a supply of water for domestic purposes, paying the race-owners for tho accommodation. This payment for many years was made in tho shape of contributions from the individuals who used the water.’Within the last year tho Corporation of Cromwell had undertaken to pay the race-owners a hulk sum for the general supply of the town. Differences arising as to tho quantity supplied, the townspeople began to inquire into tho right of the race-owners and their own, and, on this inquiry, found that tho yearly renewals of tho license of the race-owners for at least tho last two years had endorsed upon them the following endorsement : “Number of sluice-heads, five, of which there shall always flow' onefifth (one sluice-head) at least into the town of Cromwell through the town race.” On becoming aware of this endorsement the complainant, Mr. Whetter, Mayor of the town of Cromwell, entered a complaint in the Warden’s Court against the raceowners, to the effect that they (the raceowners) refused to comply W’ith the condition endorsed on their license, and claiming “ that they be adjudged to allow' one sluice-head of water to flow into tho town of Cromwell, as provided by the said endorsement.” On the hearing of this complaint, the Warden ma 'e a minute of his decision in tho following words : “ Defendants to place a sluice-box (under the supervision of the Government Surveyor) and at their own expense, at the point where the town race branches from the defendants’ race, in accordance with original order (the endorsement), Corporation to keep race in repair, box to be ready by Tuesday next.” From this decision the race-owners had taken the present appeal, on grounds broad enough to cover all the substantial matti rs of dispute between the parties. On the hearing of tho appeal the chief contentions of the appellants were as follows;

1. They endeavored to prove, as matter of fact, that the endorsement never appeared on tho earlier certificates or licenses, and that it was endorsed upon the later renewals by the Warden without authority and without the consent or knowledge of the party, and they contended that a Warden had no right to endorse upon a renewal license a condition that did not appear upon the original. 2. They contended that the endorsement, even if it had originally appeared upon the earliest certificate or license, contained an onerous condition that it was not within the scope of the Warden’s power to impose upon them. They contended, in fact, that the Warden was not authorised to make it n condition of his grant to them that they should make and maintain a water race for 'the benefit of the town of Cromwell.

3. They contended that, if they must allow the one shuoo-hcad to flow, according to tlie endorsraent, it should be measured according to the regulation of 1863, the date of their earliest grant. 4. They contended that, even if they were hound to let the water flow ashlireete ', they were entitled to charge tho inhabitants for the use of it.

As to the questions raised upon matter of fact, his Honor proceeded to review tlio evidence at some length. The appeal having been partially heard last sittings, hail been adjourned to the present sittings in order to procure the evidence of Mr. Stratford, late Warden of the Cromwell district. Mr. Stratford’s evidence had relieved him from much of the difficulty he had previously felt as regards the facts, and he had come to the conclusion that the endorsement had certainly appeared in all the renewals from ISOG inclusive. Whether it had appeared e rlier was not clear. It was well known that, for reasons conuee'od with the amendment of the Goldfields Act in 1865, many of the old grants of water were, in IS6G, not merely renewed in the or unary sense of the term, but were converted into new grants upon new applications, sometimes with an increased supply of water, which was granted either as an amalgamation of several existing rights or directly up n the new application. It this case it appeared, from the evidence now before the Court, that the increase from three heads to live was granted upon a regular application made by one of the raceholdors. This application itself suggested the making of the endorsement ; at all events the endorsement apeared on the back of the application. He concluded therefore that the endorsement was legitimately made. As to the power of the Warden to make the endorsement ho had at first felt considerable difficulty. At the period of this endorsement the Warden was authorised by the regulations to endorse “ such lawful conditions as may bo desirable or necessary for the public good.” If the present condition must necessarily be interpreted as a condition that those miners were to make and maintain an enlarged race for the purpose of carrying a gratuitous supply of water to the township of Cromwell, it woul 1 he difficult, he thought, to maintain the validity of such a condition ; and, seeing that the water at its source and along its natural course had no very necessary connexion with the township of Cromwell, as the natural channel did not approach within several miles of the toivnship, the endorsement did at first seem like an attempt to make a sort of sale of a watertight to these [raceholdors, and to endow the town of Cromwell with the proceeds ; hut, on more carefully considering the words of the endorsement, they did not necessarily imply that the supply was to he gratuitous. The words were ambiguous, • They did not clearly express whether the water, when allowed to flow in the town race was originally itself the termination of the race-owners’ race, nor to cease to he the property of the race-owners and to become the property of the inhabitants of the \vn, or was still to continue the property

of the racohohlers. Either interpretation ■was consistent with tho words employed. On deliberate consideration he interpreted the condition in the sense that seemed to bo most in accordance with tho circumstances which surrounded the making of it, with tho conduct of the parties since it was 'endorsed, and with the validity of the condition itself. Ho had made inquiries as to the nature of tho conditions that were commonly to ho found endorsed upon these grants of water. His Honor hero passed in review various conditions which he found had been endorsed on suehgrantsj and proceeded ‘specially to instance tw r b. He had found, in the Lake) district, a condition endorsed in order to meet the objections of the inhabitants of a small mining village. These inhabitants used to draw their supplies of water for [domestic purposes from a stream which passed nigh the village. Some miners applied for a race, which, taken from'a'diatant source, was to bo carried across this stream, and they asked for authority to pick’up'the water of this stream and take it into the proposed race. The inhabitants ,of the village objected to the diversion of the stream from which "they drew 'their domestic supply. Their objection was met by endorsing upon the license a condition that the applicants for the water should give a supply _to the village from their ow'n main race, at a point still nearer to the village than_ the stream which they sought_to~pick‘ up. In the other instance, a very Targe quantity of water being applied for, and the application opposed on the ground that, if granted, it would deprive certain auriferous terraces on which the objectors were working, and which lay in aMifferent, direction from the proposed terminus of the race, of all probable supply of water in the future. This objection was met by endorsing a condition that a certain number of heads of water should he carried by the applicants to these terraces. He thought that these two w'ore instances of reasonable conditions within the scope of the power intended to he given to the Warden, and he thought that, if the language of these conditions was doubtful in its construction, tho circumstances under which tlie grants were respectively made would indicate that, in the former case, it was intended that the inhabitants of the village should have the water without paying for it, as they lost a supply of water which they were enjoying without any ap. preeiahle cost in obtaining it : and, in the latter case, that tho objectors should pay for the supply furnished to them, because, if their objection had prevailed, they could not have procured their supply of water without considerable cost. They could only have obtained it by some other private persons being licensed to bring a supply of water to tho ten-aces in question at their private cost, and then sell it to those objecting miners. If, in the present case the inhabitants of Cromwell had been objecting parties to tho grant of this water, and had succeeded in their objection, all they wold have gained would have been a prior right to carry in, at their own expense, by a race several miles in length, a supply of water sufficient for their domestic purposes. Taking those circumstances into account, and al-o that, up to the latest date, the inhabitants had, either individually or through the Town Council, paid the race-owners for the water they used, ho thought the true interpretation of the endorsement to be that tho race-owners were merely bound to carry their water through the town, leaving it oj en to them to make their arrangements with the people of the town, as it would have been open for them to do so if the condition had been a condition in similar terms to carry the water to some termination where water was required for purposes of mining. Ho thought the words of the decision of the Warden consis tout with this view. It did not appear that the Warden meant that the townspeople should enjoy this water without paying for it; and, although in the argument of this appeal, the gentleman who acted for the inhabitants of Cromwell would have been t»hid to have had an opinion from the Court that tho water became at once the property of the people of Cromwell, he did not press this view with any great urgency. Viewing tho endorsed condition merely as a condition that tho race-holders should deliver their water, or a portion of it, at a certain termination, he considered the eomiition valid, not only as a condition, but also on the ground that all these grants of water were grants of water to be taken from a certain point along a given course and to a given termination, which termination could not be altered without the consent of the Warden, a consent that was not likely to bo given unless the Warden saw that it was gjonsistent with the public advantage. As 'to the measurement by which the one sluice head that was to pass through the town race should be guaged by the old measurement or by the new, he did not think that the appellant had sufficiently made out a case to vary the decision of the Warden on this point, Understanding then that the decision of tne Warden had not decided that tho inhabitants of Cromwell were entitled to a gratuitous supply of water, it might, perhaps, ho sufficient for him to confirm tho decision ; but ho though it advisable to vary the tenor of it, with a view to render it more explicit. His judgment therefore would he, That the order of the Warden he so varied that it shall read as follows := “Defendants to place a guagebox, under the supervision of the Government Surveyor, and at. their own expense, at tho point where the town race branches from the defendants’ race, so that there should always flow one sluice-head of water at least into tho township of Cromwell through tho town race,, in accordance w;ith the conditions endorsed on the defendants’ licence. This order to ho without prejudice to any question that may arise between the inhabitants of tho town of Cromwell or any other parties and tho defendants as to to the use of the water so flowing into or through the town of Cromwell, or as to the sale of the same. The defendants to ho at liberty at any time after public notice given to the satisfaction of the Warden, and on good cause shown, to apply to the Warden for liberty to discontinue the flow of the said water, and, as to said water, to alter the termination of the race, or to diminish the said flow, or to apply otherwise to vary or revoke this order.” Each party to bear their own costs in the appeal.